United States v. Roberto Castro-Lopez

FILED
NOT FOR PUBLICATION MAR 19 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10137
Plaintiff - Appellee, D.C. No. 4:11-cr-01349-DCB-
HCE-1
v.
ROBERTO CASTRO-LOPEZ, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted March 14, 2014
San Francisco, California
Before: FISHER and BERZON, Circuit Judges, and QUIST, Senior District
Judge.**
Roberto Castro-Lopez was convicted of violating 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(ii)(II), 952(a), 960(a)(1), 960(b)(1)(b)(ii), and received the minimum
sentences required by statute. He appeals those sentences, arguing that he should
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
have been sentenced under the “safety valve” provision, 18 U.S.C. § 3553(f), and
that the district court’s contrary conclusion relied on the fact of his prior juvenile
adjudications, a fact that constitutionally should have been proven to a jury under
United States v. Tighe, 266 F.3d 1187, 1194–95 (9th Cir. 2001), and United States
v. Washington, 462 F.3d 1124, 1141–42 (9th Cir. 2006). Where, as here, Castro
failed to object to the constitutionality of his sentence before the district court, we
review for plain error. See, e.g., United States v. Chavez, 611 F.3d 1006, 1009 (9th
Cir. 2010) (per curiam).
Tighe, 266 F.3d at 1194–95, and Washington, 462 F.3d at 1141–42, require
that the fact of a prior non-jury juvenile adjudication be proven to a jury, or
admitted by a defendant, only where Apprendi v. New Jersey, 530 U.S. 466 (2000),
and its progeny apply. United States v. Labrada-Bustamante, 428 F.3d 1252, 1263
(9th Cir. 2005), affirmed the constitutionality of the safety valve provision
notwithstanding that provision’s reliance on judicial factfinding. If there is any
tension between Labrada-Bustamante and Alleyne v. United States, 133 S. Ct.
2151 (2013) — which we do not decide — it does not represent the sort of “clearly
irreconcilable” conflict that would allow us to overrule Labrada-Bustamante, see
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc), on plain error
review.
2
AFFIRMED.
3